In preparation of the trial against Abdallah Banda, the Trial Chamber issued a warrant of arrest in September 2014. The accused appealed against this decision and in March 2015, the Appeals Chamber ruled on the appeal (here). The Chamber’s decision under review in this blogpost confirms the Trial Chamber’s judgment (for a review of the Trial Chamber’s decision cf. here).

At the outset, it is important to note that the Appeals Chamber sees its task not in reviewing the substantial decision of the Trial Chamber: Whether or not an arrest warrant or a summons to appear is beyond the decision here reviewed, as explicitly stated by the Appeals Chamber. Instead, the Chamber reviews whether the Trial Chamber should have provided the appellant with a further opportunity to present submissions on the choice between arrest warrant and summons to appear (para. 27).

This makes the decision somewhat less interesting, a purely procedural matter that is rather easy to agree with.

In the end, the Chamber does not find the approach taken by Banda convincing. Banda bases his appeal on the principle of audi alteram partem, which the Appeals Chamber defines as “[h]ear the other side; hear both sides. No man should be condemned unheard” (http://thelawdictionary.org/audi-alteram-partem/) (fn. 55).

The Appeals Chamber reiterates that it will review the Trial Chamber’s exercise of its discretion only

“where it is shown that that determination was vitiated by an error of law, an error of fact, or a procedural error, and then, only if the error materially affected the determination. This means in effect that the Appeals Chamber will interfere with a discretionary decision only under limited conditions. The jurisprudence of other international tribunals as well as that of domestic courts endorses this position. They identify the conditions justifying appellate interference to be: (i) where the exercise of discretion is based on an erroneous interpretation of the law; (ii) where it is exercised on patently incorrect conclusion of fact; or (iii) where the decision is so unfair and unreasonable as to constitute an abuse of discretion.” (para. 30).

For this, the appellant bears the burden to substantiate the material effect of an alleged procedural error (para. 29).

The Chamber notes that Banda failed to substantiate his claim. In addition to the rather general recourse to audi alteram partem he “does not put forth any legal argument in support of the contention that the procedural step of inviting further submissions was required as a matter of law“ (para. 31). This seems to be the decisive aspect of the case: Not that Banda was not heard at all – presumably amounting to a violation of audi alteram partem – but the chance to further submissions (the Appeals Chamber puts ‘further’ in italics throughout the decision).

In the end, the Appeals Chamber let’s the Trial Chamber’s arrest warrant stand. There is not word on the question of whether an arrest warrant was required or a summons to appear would have been enough to prepare the trial against Banda.